Malvo v. Mathena

LEE BOYD MALVO Petitionerv.RANDALL MATHENA, CHIEF WARDEN RED ONION STATE PRISON and BRIAN FROSH, as ATTORNEY GENERAL FOR THE STATE OF MARYLAND Respondents

MEMORANDUM OPINION

PETER
J. MESSITTE UNITED STATES DISTRICT JUDGE

Lee
Boyd Malvo has filed a petition pursuant to 28 U.S.C. §
2254 for a Writ of Habeas Corpus against Randall Mathena,
Chief Warden of the Red Onion State Prison in Pound, Virginia
(where Malvo is presently confined), and Brian Frosh,
Esquire, Attorney General for the State of
Maryland.[1] Malvo seeks to modify the six consecutive
terms of life imprisonment without the possibility of parole
he was sentenced to in 2006 in the Circuit Court of
Montgomery County, Maryland, following guilty pleas on six
counts charging murder in the first degree.

On
January 13, 2017, Malvo filed a Motion for Stay (ECF No. 18)
in this Court, asking it to stay and hold in abeyance the
§ 2254 Petition. He argues that a stay is proper because
on January 12, 2017, he filed a Motion to Correct Illegal
Sentence challenging the legality of his sentences in
Maryland State Court based on the Supreme Court's
decision in Miller v. Alabama, 132 S.Ct. 2455
(2012).

Defendants
have filed an opposition to the Motion to Stay (ECF No. 21),
effectively arguing that the Court should deny Malvo's
Motion and dismiss the § 2254 Petition because the claim
he raises has not yet been exhausted in state
court.[2]

Over
the course of several weeks in October 2002, Malvo and John
Allen Muhammad, who became known as the “D.C. Snipers,
” shot 13 people, killing 10. See Muhammad v.
State, 177 Md.App. 188 (2007).[3] Malvo was 17 years old at
the time of the killings, Muhammad was 41. See id.
at 217. The shootings took place in Maryland, Virginia, and
the District of Columbia. See generally id.

In
December 2003, Malvo was convicted in Virginia of two counts:
murder in the commission of an act of terrorism and murder of
more than one person in a three year period. See Malvo v.
Mathena, 2014 WL 2808805, at *3 (E.D. Va. June 20,
2014). He was sentenced to two terms of life imprisonment
without parole plus eight years. Id. Malvo did not
appeal his judgment of conviction in the Virginia courts.
Id.

On
October 10, 2006, in the Circuit Court for Montgomery County,
Maryland, Malvo pled guilty to six counts of first degree
murder, and on November 8, 2006, he was sentenced to six
terms of life imprisonment without the possibility of parole,
to be served consecutively. Am. Pet. ¶¶ 1-2, ECF
No. 8; Defs.' Lim. Ans., Ex. 1, ECF No. 10-1.
Malvo did not appeal his Maryland conviction to the Maryland
appellate courts. Am. Pet. ¶ 3; Defs.' Lim. Ans.,
Ex. 1. On November 27, 2006, however, he did file a motion
for modification of sentence in the Montgomery County Circuit
Court, which the court initially held in abeyance, and
eventually denied on September 18, 2012. Defs.' Lim.
Ans., Ex. 1.

Malvo
is presently incarcerated in the Commonwealth of Virginia.
Am. Pet. ¶ 8.

On June
25, 2012, the U.S. Supreme Court decided Miller v.
Alabama, 132 S.Ct. 2455 (2012), which held that the
Eighth Amendment to the U.S. Constitution generally prohibits
the imposition of mandatory life without parole sentences for
juveniles. In consequence, Malvo filed separate § 2254
petitions in Virginia and Maryland federal courts, seeking to
modify his Virginia and Maryland sentences respectively, on
the ground that his life without parole sentences are
unconstitutional in light of Miller. The § 2254
petition of his Virginia convictions (hereinafter the
“Virginia Petition”) was filed in the Eastern
District of Virginia (2:13-cv-00375 and 2:13-cv-00376). The
§ 2254 petition of his Maryland convictions (hereinafter
the “Petition” or “Maryland
Petition”) is before this Court.

B.
Malvo's Virginia Petition

In June
2014, the Eastern District of Virginia denied Malvo's
Virginia Petition. Malvo v. Mathena, 2014 WL
2859153, at *2 (E.D. Va. June 23, 2014). The court held that
Miller did not apply retroactively, and thus
dismissed with prejudice Malvo's Virginia Petition as
time-barred. Malvo appealed to the Fourth Circuit, No.
14-7069. Id.

Throughout
2014 and 2015, the Fourth Circuit issued a series of stays
delaying the briefing schedule in the appeal of the Virginia
Petition. Fourth Circuit, No. 14-7069, Docs. 6, 26. One of
these stays related to the Supreme Court's grant of a
petition for writ of certiorari in Montgomery v.
Louisiana, No.14-280, in March 2015, Fourth Circuit, No.
14-7069, Doc. 26, which raised the issue of whether
Miller was retroactive.

On
January 25, 2016, the Supreme Court issued its judgment in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
holding in a 6-3 decision that Miller's
prohibition on mandatory life without parole for juvenile
offenders announced a new substantive rule that, under the
Constitution, was indeed retroactive and could be raised by
affected individuals on collateral review.[4]

On
April 6, 2016, Defendant Mathena moved the Fourth Circuit to
remand the Virginia Petition to the Eastern District of
Virginia for reconsideration in light of Miller and
Montgomery. Fourth Circuit, No. 14-7069, Doc. 33. In
fact, he requested that the Fourth Circuit remand to the
district court for a full merits analysis, without limitation
as to the scope of the merits arguments which the parties
might present. Id. On May 20, 2016, the Fourth
Circuit granted Mathena's Motion to Remand, directing the
Eastern District of Virginia to further consider the Virginia
Petition in light of Montgomery. Fourth Circuit, No.
14-7069, Doc. 39. The Fourth Circuit's mandate was issued
on June 13, 2016, so that the Virginia Petition is currently
pending before the Eastern District of Virginia. Fourth
Circuit, No. 14-7069, Doc. 41.[5]

C.
Malvo's Maryland Petition

On June
25, 2013, Malvo filed his Maryland Petition for Writ of
Habeas Corpus in this Court. ECF No. 1. The Petition named
Mathena as the sole defendant. Mathena responded (ECF No. 4),
alleging that the Attorney General of Maryland was the proper
party defendant in the case, such that on August 19, 2013
Malvo filed an Amended Petition (ECF No. 8) adding
then-Maryland Attorney General Douglas F. Gansler as a
defendant.[6] The Petition requests that the Court
vacate the allegedly unconstitutional sentences imposed by
the Montgomery County Circuit Court. Malvo challenges the
without-parole component of his sentences based on the
Supreme Court's holding in Miller. Defendants
filed a limited answer (ECF No. 10) on October 25, 2013.

In
light of the Eastern District of Virginia's denial of the
Virginia Petition and Malvo's appeal to the Fourth
Circuit, this Court deferred ruling on the Maryland Petition
until the Fourth Circuit could address Malvo's Virginia
appeal. Following the Fourth Circuit's decision to remand
Malvo's Virginia Petition to the Eastern District of
Virginia for further consideration in light of
Montgomery, this Court renewed its focus on the
Maryland Petition. On October 31, 2016, the Court issued a
Memorandum Order (ECF No. 13) stating that it deemed it
appropriate to receive further briefing on Malvo's
Petition and the parties' arguments in light of
Miller and Montgomery.

On
January 13, 2016, Malvo filed the pending Motion for Stay
(ECF No. 18), asking the Court to stay and hold in abeyance
the instant proceedings because on January 12, 2017, he filed
a Motion to Correct an Illegal Sentence in the Circuit Court
for Montgomery County. On February 22, 2017, Defendants
responded (ECF No. 21), asserting that the Court should
dismiss Malvo's Petition because he had yet to exhaust
available state remedies with respect to the claim raised in
his underlying petition. Malvo has not replied.

II.
ANALYSIS

It has
long been held that “habeas petitioners must exhaust
available state remedies before seeking relief in federal
court.” Cone v. Bell, 556 U.S. 449, 465
(2009). See also Rose v. Lundy, 455 U.S. 509, 518-19
(1982). When Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”)-altering the
rules for federal habeas corpus petitions- it preserved the
“total exhaustion” requirement. See 28
U.S.C. § 2254(b)(1) (“An application for a writ of
habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State. . . .”).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Plainly
Malvo has not yet exhausted his state remedies.[7] However, in
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court held that &ldquo;rather than dismiss [a] petition . .
., a district court might stay the petition and hold it in
abeyance while the petitioner returns to state court to
exhaust his previously unexhausted claims.&rdquo;
Id. at 275.[8] The Supreme Court did, however, caution
that &ldquo;stay and abeyance should be available only in
limited circumstances.&rdquo; Id. at 277
(“[S]tay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even ...

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